BRF038 v The Republic of Nauru [2017] HCA 44: Procedural Fairness in Nauruan Refugee Tribunal
Wednesday 18 October 2017 @ 2.23 p.m. | Legal Research | Immigration
Today (18 October 2017) the High Court of Australia has decided in favour of an appellant who claimed the Nauruan Refugee Status Review Tribunal had failed to accord him procedural fairness. Justice Keane, Justice Nettle and Justice Edelman handed down a unanimous decision to allow the appeal from the Supreme Court of Nauru, and their Honours have ordered that the decision of the Tribunal be quashed and the matter be remitted for reconsideration.
Case Background
The appellant arrived by boat at Christmas Island in September 2013, and was transferred to the Republic of Nauru, where he applied for refugee status. The appellant was a member of the Gabooye tribe and had previously lived in Awdal Province in Somaliland, a region of Somalia. His mother and four of his five brothers still live in Somaliland.
The appellant’s refugee application was made in February 2014, and alleged that he feared persecution because of his membership of the Gabooye tribe, and because of his opposition to the group Al-Shabaab. He listed a number of incidents, including one where:
“…his family's farm was taken by members of another tribe. When the appellant's mother confronted the men who took the farm from her, they refused to leave, saying that they had a right to the farm as they were from a higher caste tribe. The appellant said that they told his mother to leave the farm or she would die.” [at 12]
In September 2014 the Secretary of the Department of Justice and Border Control of Nauru refused his application. The appellant then appealed to the Refugee Status Review Tribunal (“the Tribunal”).
The Tribunal Decision
In March 2015, the Tribunal handed down its decision in the case, finding that “the harm that the appellant and his family faced constituted discrimination, but did not rise to the level of persecution” [at 22]. The Tribunal accepted that the appellant’s family were forced off their farm, but noted that his mother and two of his brothers were able to earn a living (although “at a subsistence level”) [at 25], and found that “the appellant left Somalia in search of a better life and better employment prospects.” One of the key findings in the case was:
“Although the [appellant] has been subjected to discrimination in the past, the Tribunal does not accept that he would suffer torture or cruel, inhuman or degrading treatment or punishment in Somaliland. The country information indicates that there are police from every tribe in Somaliland so he would have some redress from the acts of others. The [appellant] may be only able to work in lowly paid employment but would be able to subsist as he did in the past and as his family members currently do.” (as quoted [at 27] of the High Court’s judgement).
The Supreme Court of Nauru
The appellant then appealed to the Supreme Court of Nauru ("the Supreme Court"), his appeal including the grounds that the Tribunal had denied him procedural fairness, as the Tribunal had not informed him that it intended to rely on country information showing that the Somaliland police comprised members of every tribe, to which he could not respond. The Supreme Court rejected this appeal and upheld the Tribunal’s decision, saying the information was not critical to the decision.
The High Court Decision
Their Honours noted that there had been a preliminary question as to whether leave to appeal was required, on the basis that “the order of the Supreme Court of Nauru was made in the exercise of its appellate, rather than original jurisdiction” [at 35]. However, the parties agreed that the Supreme Court was in fact exercising its original jurisdiction in conducting judicial review of the Tribunal decision, with the initial Tribunal decision being “an administrative review of the merits of the case” [at 40].
The High Court rejected an argument brought by the appellant that the Supreme Court erred in failing to hold that the Tribunal applied the wrong test in determining if he had suffered “persecution”, concluding that:
“The findings of the Tribunal were not such as to compel the conclusion that the appellant faced such serious, sustained and systematic harm that he has a well-founded fear of persecution in Somalia by reason of his membership of the Gabooye tribe. On the contrary, it was open to the Tribunal to conclude that the appellant was not faced with a well-founded fear of "persecution" within the meaning of the Refugees Convention.” [at 44]
However, their Honours accepted the appellant’s argument that the Tribunal had failed to afford him procedural fairness by introducing the information about the composition of the Somaliland police force, and that this information was critical to the decision:
“That the country information concerning the composition of the Somaliland police was indeed integral to the Tribunal's conclusion is supported by the consideration that the presence of Gabooye tribal members in the Somaliland police force might be apt to counter, or limit, the harsh effects of discriminatory treatment of the Gabooye by higher caste groups. When that consideration is not available, it is easier to conclude that the harm from the discriminatory mistreatment faced by the appellant is likely to be so sustained and systematic that it can properly be characterised as persecution.” [at 63]
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Sources:
BRF038 v The Republic of Nauru [2017] HCA 44 (18 October 2017)
